Using international human rights law to improve child health in low-income countries: a framework for healthcare professionals

There are several frameworks to assess how well states are adhering to human rights principles. The main components include; outcome indicators which evaluate key variables such as child mortality, indicators which evaluate a state’s conduct, including if a state has ratified and legislated for a given right and the effort towards implementation such as national guidelines and resource allocation [2]. The Centre for Economic and Social Rights use a framework whereby they look at Outcomes, Policy Efforts, Resources and finally do an Assessment (OPERA), Table 1 [5]. Assessing policy effort, resource generation and allocation is probably beyond what most healthcare workers would have time and possibly expertise to do. Attributing responsibility for high rates of child mortality involves complex analyses of conduct and resources [5] and is especially difficult as the raising and allocation of resources in poor countries may not be entirely self-determined and the role of other organisations such as international financial organisations will need to be considered [6]. Nonetheless auditing of outcomes, the top row in the OPERA framework, and advocacy at a local level could play a crucial role and possibly catalyse further analysis of other components of the pathway by groups such as public health professionals or civil society.

A minimum core of Economic, Social and Cultural rights (ESCR) seeks to establish a legal minimum set of protections, which should be available with immediate effect and applicable to all, in all nations, despite different resources. International human right institutions have tried to compensate for the loophole of progressive realisation by establishing a minimum core of rights which are of immediate effect [7]. The attraction of the concept is that if an international minimum core could be agreed there would be a higher burden of proof on states to prove that they are using all available resources to achieve this [5]. Gordon and colleagues assert that a rights based strategy will only reduce child mortality if some rights are prioritized over others [8] and others have argued that a stronger minimum core could make significant contribution towards global health equity [7]. The Committee on Economic, Social and Cultural Rights (CESCR) has suggested that an international minimum core of ESCR should be developed and be legally binding, but reaching a consensus on minimal core rights has followed a meandering path [9].

From the perspective of healthcare workers, a set of minimum core obligations could be powerful, as these are critical determinants of health, many of which are also basic human rights [10]. Seventy years ago Maslow recognised that needs are hierarchal and the most basic needs are our physiological needs required for survival, i.e., air, water, food and shelter. The other groups of needs are for safety, love, esteem and self-actualization [11]. These are often represented as tiers on a pyramid of needs, with the physiological needs on the lowest tier. If physiological needs are not met, a child will not survive, much less thrive to enjoy their other rights.

Therefore we concentrate on the basic or physiological needs which are also human rights. We have called them ‘absolute rights’, the right to food, water, sanitation and shelter. Female education is very important to children having the right to life; every extra year of education of females of reproductive age results in a 9.5 % decrease in child mortality [12]. Therefore we have included Article 28 of the UNCRC, the right to free primary school education as an absolute right. The right to healthcare is complicated by where to place the bar in terms what services should be provided and who should pay for them. However it is known that basic vaccinations reduce mortality in the first year of life [13], and as in General Comment number 14 [3], we have included basic vaccinations as an absolute right for all children.

When should a minimum core of rights come into effect? The Office of the United Nations High Commissioner for Human Rights (OHCHR) has stated that Civil and political rights should be immediately applicable but Economic, Social and Cultural Rights are subject to progressive realisation, If resources are lacking [2]. However, it is likely that progressive realisation has undermined the right to health and diminished both domestic and international responsibilities [7]. General Comment Number 3 of the CESCR (1990) has stated that obligations of results may be achieved progressively while the obligation of conduct is immediate [5, 14]. General Comment Number 14 (2000) states that core obligations on the right to health are of immediate effect [3, 8]. In our quest for a minimum core of rights, which are independent of a state’s resources and less likely to be undermined by the principle of progressive realisation, we believe the absolute right to food, water, sanitation, shelter, basic education and vaccinations are indisputable and that these should be of immediate effect. In circumstances of limited resources (as opposed to unequal distribution of resources), these absolute rights should be within the Extra Territorial Obligations of the international community [15].

“A major concern with the use of indicators for human rights assessments stems from the fact that there is not a significant body of work in the literature, or in practice, that uses a consistent and coherent frame-work to identify and develop those indicators” [2], in addition indicators are needed that assess the right to health [16]. While there is a difference between a human right and a development goal, there is no clear distinction between quantitative ESCR outcome indicators and development indicators in terms of their collection [17]. Data collected by development agencies can be used as indicators to benchmark the outcome component, or the results, of adherence to human rights obligations [2]. The OHCHR has noted that ESCR are resource intensive, subject to progressive realisation and should be reported and perceived as positive human rights [18]. International development agencies often collect development goals as positive, (i.e., the percentage of people who do have access to …). When development data, such as the percentage of people who have access to improved water, is used for the purposes of monitoring an absolute right, it should be reported appropriately i.e., the percentage of people who do not have access to …. This brings a different response; who are the duty bearers and what particular obligation has the duty bearer failed to respect, protect or fulfil? This may help shift the dialogue and more importantly the mind-set, from one of charity to one about rights.

For healthcare workers to audit access to human rights, indicators for each right which is considered absolute is required. We have mapped, what we consider to be absolute and immediate rights, as they are set out in the UNCRC, to the global monitoring indicators suggested by the Open Working Group (OWG) for the sustainable development goals [19] and the UNHCR [2], using the outcome domain of the OPERA framework, Table 2.

Health workers can play a powerful role by reporting the absolute rights of children living in their catchment area using the outcome domain of the OPERA framework, top row, Table 1. For a district or a country, routinely collected data such as demographic and health surveys [20], can also be used to report absolute rights and may also include data such as neonatal, infant and child mortality as, where information is collected carefully and the data sets are sufficiently large this is meaningful. It is important to disaggregate the data to compare between groups such as children from different districts, rural and urban, and male and female. Data on each of these indicators is relatively easy to collect. For example, at one of the author’s institutions, this information is collected for all unscheduled attendees, using an electronic patient record, see Table 3. Vaccination and nutritional status data is also collected for a subset of patients.

These audits could achieve several objectives. They may raise awareness of basic human rights and their importance to health. Presenting the results could give the healthcare worker an informed voice to advocate at forums such as district councils and legitimise their role as agents for change. The use of the results will vary according to local circumstances. Advocacy and budgetary oversight at a local level, by a group who are often highly respected in their community is important, as resource allocation is critical and this may channel allocation toward human rights for health. Absolute rights may provide local councils and health teams some leverage when negotiating with international organisations and non-governmental organisations (NGO). Donors and NGOs often arrive in a district with a predetermined set of objectives. A set absolute rights and local data, could allow local teams to ask partners to prioritise these; the scale up of access to absolute rights might be significant.

The availability of ESCR rights are highly influenced by national resource generation and allocation; i.e., what happens locally is influenced by national and international policies and markets. Healthcare workers could work with other professionals such as public health and civil society to do a complete OPERA assessment. Local level data could influence and be used to advocate for changes in national level policy. Governments that ratify the human rights treaties have a legal obligation to advance the rights within them. This includes the regulation of their local and regional sub-divisions and other non-governmental organisations and actors, as well as fiscal and monetary policies. If unable to meet rights obligations, then the government is obliged to seek support and high-income countries have a legal obligation to provide cooperation. A set of absolute rights would place a higher burden of proof on outside state parties to prove that they were adhering to their extra territorial obligations by cooperating with countries to achieve a minimum core of rights for all. This could include cross border tax arrangements, trade agreements including intellectual property and services, and the movement of capital. A set of absolute rights could contribute to a needed change in mind-set from one of development needs to absolute rights. Concerns that an absolute rights approach may result in resources being diverted from other important human rights should be allayed by the principle of non-retrogression; states cannot regress in terms of achievements, which is inherent in all human rights principles.